It is being called a “post-Weinstein world”.
The sexual abuse allegations against film mogul Harvey Weinstein led to an outpouring of allegations against other powerful people in Hollywood and the entertainment industry. It seems like every week another allegation surfaces, with more and more people finally getting the courage to speak out about inappropriate actions. In nearly all of these cases, the perpetrators were either well-known public figures, or they wielded considerable power within the industry.
This subject is finally receiving the attention it deserves, and has implications for workers as well. The workplace is an especially vulnerable place due to the obvious power imbalance between employees and their supervisors. Many survivors do not want to come forward for fear of being fired or for having their terms of employment changed.
If you are experiencing sexual harassment in the workplace, what are your legal rights?
The Occupational Health and Safety Act has recently been amended to add specific duties for employers, requiring greater accountability regarding workplace sexual harassment. Every employer with a workforce of five or more employees is obligated to do the following:
- Develop and maintain a written program to implement a sexual harassment policy in consultation with the joint health and safety committee or representative;
- Establish procedures and measures for workers to report incidents to someone other than their supervisor or employer, if those individuals are the alleged harasser;
- Establish how information obtained during a harassment investigation may be disclosed;
- Ensure investigations are appropriate to the circumstances;
- Communicate, in writing, the results of a harassment investigation to the worker and alleged harasser; and
- Review, at least annually, the harassment program.
If you are being sexually harassed in the workplace, you can report the harassment to your employer, supervisor, or Human Resource Representative and they will assist you with the next steps.
The changes also mean that if your employer fails to comply with its duties under the Act, you can make a complaint to the Ministry of Labour (“MOL”). The MOL may then order a sexual harassment investigation, at the expense of the employer.
If you have been disciplined or threatened for exercising your rights under the Act, you can also file a complaint with the Ontario Labour Relations Board.
One limitation of this Act is that the MOL’s powers extend only to ordering investigations, and it is up to the employer to follow through with their written policies. The MOL does not have the power to provide financial relief to a victim of sexual harassment. Therefore, if you are forced to leave the workplace or have become ill as a result of the harassment, the MOL cannot provide you with financial relief for such damage.
Human Rights Tribunal of Ontario
Survivors of sexual harassment in the workplace can seek financial compensation under the Human Rights Code by making an application to the Human Rights Tribunal of Ontario (the “Tribunal”). Applicants have one year from the date of the incident to make an application to the Tribunal.
The Code states that every person has the right to be free from unwelcome advances or solicitation in employment. This includes when applying and interviewing for a job, volunteer work, internships, etc. It even includes activities that occur outside of normal business hours or off business premises, but are linked to the workplace.
Employers have a legal duty to assure they have a poison-free environment that respects human rights.
Applicants can make an application to the Tribunal if:
- A person in a position to grant or deny a benefit has made sexual advances or solicitations towards you;
- A manager has knowingly permitted a poisoned-workplace atmosphere; or
- An employer has punished you for making a sexual harassment complaint.
Awards at the Tribunal can range anywhere between $7,500 to $20,000.
However, the Tribunal does not have the power to award a survivor of sexual harassment their legal fees, even if they are successful in their case. Therefore, this makes minimal awards (under $30,000) less than ideal, as it could easily cost an Applicant $10,000-15,000 in legal fees to pursue their claim.
However, do not let this deter you. Many applicants can proceed to the Tribunal on their own or with limited legal assistance. Our firm provides limited retainers to assist a self-represented applicant.
There is also the opportunity to make a Human Rights Application at the Superior Court if there are additional claims, such as wrongful dismissal. At the Superior Court, judges do have the power to award legal fees.
Regardless of your situation, you should always seek a lawyer for initial advice. Contact our Employment Law Group today.